Bundy v. U.S. Dist. Court for the Dist. of Nev. (In re Bundy)

• Decision Date: 28 October 2016
• Docket Number: No. 16-72275,16-72275
• Citation: 840 F.3d 1034
• Parties: In re: Cliven D. Bundy, Cliven D. Bundy, aka Cliven Bundy, Petitioner, v. United States District Court for the District of Nevada, Las Vegas, Respondent, United States of America, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

840 F.3d 1034

In re: Cliven D. Bundy,Cliven D. Bundy, aka Cliven Bundy, Petitioner,

v. United States District Court for the District of Nevada, Las Vegas, Respondent,United States of America, Real Party in Interest.

No. 16-72275

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2016

Filed October 28, 2016

Joel F. Hansen, Cooper Levenson, Las Vegas, NV, Larry E. Klayman, Klayman Law Firm, Washington, DC, for Petitioner.

Nadia Janjua Ahmed, Special Assistant U.S. Attorney, Nicholas Dana Dickinson, Assistant U.S. Attorney, Adam McMeen Flake, Assistant U.S. Attorney, Steven Warren Myhre, Esquire, Assistant U.S. Attorney, USLV–Office of the U.S. Attorney, Las Vegas, NV, Elizabeth Olson White, Esquire, Assistant U.S. Attorney, USRE–Office of the US Attorney–Reno, Reno, NV, for Real Party in Interest.

Before: William A. Fletcher, Ronald M. Gould, and Jay S. Bybee, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

Attorney Larry Klayman applied to be admitted pro hac vice in the high-profile criminal trial of Cliven Bundy. The district court denied his application without prejudice. Bundy has now asked this court for a writ of mandamus to force the district court to admit Klayman. We decline to do so. Under our decisions, the district court had more than ample cause to turn down Klayman's application: he is involved in an ethics proceeding before the District of Columbia Bar, and he was not candid with the court about the status of those proceedings; he disclosed that he was twice barred in perpetuity from appearing pro hac vice before judges in the Central District of California and the Southern District of New York, but he failed to list numerous cases—all available on Westlaw or LEXIS—in which he has been reprimanded, denied pro hac vice status, or otherwise sanctioned for violating various local rules; and he has a record of going after judges personally, and shortly after Chief Judge Gloria Navarro denied his application, Bundy filed a frivolous Bivens action against her in her own court. This litany of reasons for denying Klayman pro hac vice status demonstrates that the district court did not abuse its discretion, much less commit clear error.

I. FACTUAL BACKGROUND AND PROCEEDINGS

A. Factual Background

According to the indictment, in early April 2014, Petitioner Bundy and his codefendants were involved in an armed stand-off around Bunkerville, Nevada, with agents of the Bureau of Land Management (“BLM”). Following a more than twenty-year legal battle over grazing fees on public lands, the federal courts authorized the BLM to remove some 400 head of Bundy's cattle from public lands. See, e.g. , United States v. Bundy , 2013 WL 3463610 (D. Nev. July 9, 2013). In response to the BLM's attempts to settle the dispute peacefully, Bundy said that he was “ready to do battle” and “do whatever it takes” to keep the cattle. Over the course of a week, hundreds of Bundy's supporters congregated near Bunkerville to prevent the BLM from removing Bundy's cattle. Many of Bundy's supporters were armed, and the BLM agents ultimately withdrew from the area. The incident attracted national, and even international, attention.¹

On March 2, 2016, a federal grand jury in the District of Nevada returned a sixteen-count superseding indictment against Bundy, four of his sons, and fourteen others. The indictment charged them with Conspiracy to Commit an Offense Against the United States, 18 U.S.C. § 371 ; Conspiracy to Impede or Injure a Federal Officer, 18 U.S.C. § 372 ; Use and Carry of a Firearm in Relation to a Crime of Violence, 18 U.S.C. § 924(c) ; Assault on a Federal Officer, 18 U.S.C. § 111(a)(1), (b) ; Threatening a Federal Law Enforcement Officer, 18 U.S.C. § 115(a)(1)(B) ; Obstruction of the Due Administration of Justice, 18 U.S.C. § 1503 ; Interference with Interstate Commerce by Extortion, 18 U.S.C. § 1951 ; and Interstate Travel in Aid of Extortion, 18 U.S.C. § 1952.

B. Proceedings Before the District Court

1. Klayman's Petition for Pro Hac Vice Admission

Following his indictment, Bundy secured local counsel, Joel Hansen.² He also secured the services of Larry Klayman, a member of the District of Columbia and Florida Bars. Under Local Rules for the United States District Court of Nevada, an attorney who has been retained to appear in a particular case but is not a member of the bar of the district court “may appear only with the court's permission ... by verified petition on the form furnished by the clerk.” Nev. Dist. Ct. Local R. IA 11–2(a). The Rule further states that “[t]he court may grant or deny a petition to practice under this rule.” Id. 11–2(h); see also id. 11–2(i) (“When all the provisions of this rule are satisfied, the court may enter an order approving the verified petition for permission to practice in the particular case.”).

On March 22, 2016, Klayman filed a Verified Petition stating that he had been retained by Bundy in connection with the Nevada indictment and requesting pro hac vice admission to practice before the district court. Of relevance to this petition for a writ of mandamus is the fifth question on the district court's form, which reads:

That there are or have been no disciplinary proceedings instituted against petitioner, nor any suspension of any license, certificate or privilege to appear before any judicial, regulatory or administrative body, or any resignation or termination in order to avoid disciplinary or disbarment proceedings, except as described in detail below.

Klayman wrote in response: “The only disciplinary case pending is in the District of Columbia” and that he has “responded to a few complaints.” He elaborated in an attached statement.

With respect to the disciplinary case in the District of Columbia, Klayman stated that he had represented clients, pro bono, against his former employer, Judicial Watch.³ He represented that “[t]he matter is likely to be resolved in my favor and there has been no disciplinary action.”

As to other complaints, he explained that he “agreed to a public reprimand before The Florida Bar” for failing to timely pay a mediated settlement to a client, but that there was “no showing of dishonesty” and he was never suspended from the practice of law. Separately, Klayman revealed that, roughly twenty years ago, “two judges vindictively stated that I could not practice before them after I challenged rulings they had made on the basis of bias and prejudice.” He explained that those exclusions applied only to the two judges themselves, Judge William D. Keller of the U.S. District Court for the Central District of California and Judge Denny Chin of the U.S. District Court for the Southern District of New York. Moreover, he advised that the “bars of the District of Columbia and Florida reviewed these rulings and found that I did not act unethically” and that he was currently in good standing in both jurisdictions.

2. The District Court's March 31 Order

The district court denied the Verified Petition “for failure to fully disclose disciplinary actions and related documents.” The district court found that Klayman's statement that the matter regarding Judicial Watch from the District of Columbia “is likely to be resolved in my favor and there has been no disciplinary action” was “misleading and incomplete.” Referring to the evidence it had found on its own initiative, the district court pointed out that the District of Columbia Court of Appeals Board on Professional Responsibility had received an Affidavit of Negotiated Discipline from Klayman and a Petition for Negotiated Discipline, signed by Klayman and counsel for the D.C. Bar, in which Klayman consented to public censure. Neither of these documents had been disclosed by Klayman. Because these documents were “admissions of three separate incidents of stipulated misconduct that were not clearly disclosed in Klayman's Verified Petition,” the district court denied the petition, but without prejudice. The district court then explained:

Should Klayman wish to file a new Verified Petition with the Court, the following information should be included: (1) the case numbers for the cases before Judge William D. Keller and Judge Denny Chin that resulted in these judges precluding Klayman's practice before them; (2) verification of the review by the Bar Associations of the District of Columbia and Florida finding that Klayman did not act unethically before Judges Keller and Chin; (3) an updated Certificate of Good Standing from the Supreme Court of Florida; (4) the Florida Bar Association's reprimand verifying that there was no showing of dishonesty in connection with their disciplinary action; (5) the Exhibits attached to this Order; and (6) verification that the matter in the District of Columbia disciplinary case referenced in the Verified Petition has been resolved with no disciplinary action.

3. Klayman's Supplemental Petition

Klayman filed a “Supplement to and Renewed Petition” on April 7, 2016.⁴ Klayman provided evidence and explanations for items (1)–(5) of the district court's requirements as follows: (1) he provided the case names and citations for the actions regarding Judges William D. Keller and Denny Chin; (2) he provided a letter from the D.C. Bar finding no ethical violation in the Keller and Chin matters, but said that the Florida Bar's files were no longer accessible; (3) he provided an updated letter of good standing from the Supreme Court of Florida; (4) he provided a copy of Florida's reprimand; and (5) he provided the exhibits attached to the March order.

As to the district court's sixth requirement, Klayman disputed the conclusion the district court drew from the documents it had identified. The court, he said, “appears to have misunderstood the nature and current posture of the disciplinary proceeding underway” in the District of Columbia.

[T]he prior attempted negotiated discipline never entered into effect.... Bar Counsel and Mr. Klayman had attempted to resolve the matter by agreement, but

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